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December 6, 2008

Book suggestion for the clemency (and holiday shopping) season

While many defendants and their lawyers might be hoping for a clemency gift this holiday season, I can suggest a new book for any and everyone interested in reading some academic discussion of why the harshness of the legal system may often need to be leavened by acts of grace. This new book (pictured here) is titled "When Law Fails: Making Sense of Miscarriages of Justice."

The book is edited by Professors Charles Ogletree and Austin Sarat, and I have authored an essay for the book. My essay is titled "Extreme Punishment," and there I explain why I believe extreme punishments, and not just wrongful convictions, should be included in any accounting of miscarriages of justice. The book is being published by NYU Press and more information about the book (and ordering information) can be accessed at this link. Here is part of the website's description of the text:

The ten original essays in When Law Fails view wrongful convictions not as random mistakes but as organic outcomes of a misshaped larger system that is rife with faulty eyewitness identifications, false confessions, biased juries, and racial discrimination. Distinguished legal thinkers Charles J. Ogletree, Jr., and Austin Sarat have assembled a stellar group of contributors who try to make sense of justice gone wrong and to answer urgent questions.

Are miscarriages of justice systemic or symptomatic, or are they mostly idiosyncratic? What are the broader implications of justice gone awry for the ways we think about law? Are there ways of reconceptualizing legal missteps that are particularly useful or illuminating? These instructive essays both address the questions and point the way toward further discussion.

Comments

I'm glad you noted this book, and I'll be interested to read your essay. The title instantly brings to my mind the painful irony and happenstance that can characterize mercy when it happens. In the 1990s, the Pope visited Missouri and convinced the governor to commute a death sentence for a man convicted of a drug related killing. As an opponent of capital punishment I was glad for that, yet the man whose death sentence was set aside was convicted in a trial in which no glaring errors took place, something that could not be said about the man who was executed just ahead of the Pope's visit, and the man who was executed after the commutation urged in conjunction with that visit. It shows the arbitrary happenstance that characterizes mercy as well as condemnation.

The man executed about one month before the Pope's visit was convicted based on hypnotically enhanced testimony which the Missouri Supreme Court declared to be categorically inadmissible [but only after it upheld his conviction] and tried before a jury from which the St. Louis County Prosecutor excluded all black jurors. Just days before Missouri executed this man, a prior California death sentence used as grounds for giving him death in Missouri was vacated [based on an unreliable informant's role], and the Ninth Circuit telegraphed to the Eighth Circuit the underlying conviction itself might be no good,but that his appeal of the California conviction could not be decided in the hours remaining before Missouri's execution, but the Eighth Circuit let the execution go forward anyway.

As for Roy Roberts, the man executed after the Pope left Missouri, substantial questions existed as to his factual innocence, including doubts by prison officers who investigated the prison killing that put him on death row.

I wish that we in Missouri had not killed any of these three men, yet it still amazes me that the one time fate granted the blessing of a merciful commutation, fate bypassed two instances of egregiously unjust trials and spared a man whose condemnation did not result from a shockingly unreliable trial.

Posted by: YM | Dec 7, 2008 2:06:34 PM

I was all ready to buy this book as a Christmas gift and then I saw it isn't available until 2009. So disappointing...

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